ES(H) (R) 5774-96
DECISION OF THE COMMISSION
Lisa Slade was hired by Ames Textile Company in April, 1989, as a creel hand or floor hand. Her duties involved installing spools of yarn on a warping machine. She left Ames in June, 1989 to travel to Florida and returned to Ames in November, 1989. In 1994, she was promoted to machine operator, responsible for running a warping machine. She held that position until she was laid off on October 20, 1995.
Ms. Slade alleges that she was subjected to a hostile working environment during the course of her employment by her supervisor, Michael Robinson. She further alleges that she was selected for layoff because she objected to ongoing comments and gestures of a sexual nature by Robinson and that Robinson retaliated against her for complaining about sexual harassment by refusing to recall her from layoff and by interfering with a potential job in a neighboring company.
RSA 354-A:7(V) prohibits sexual harassment in employment as a form of employment discrimination. Unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal or physical conduct of a sexual nature constitute sexual harassment when:
(a) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;
(b) Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
(c) Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment.
Sexual harassment under (a) and (b) above are referred to as quid pro quo sexual harassment and under (c) above as hostile work environment discrimination. Sexual harassment may be actionable as both quid pro quo harassment and as hostile work environment discrimination. Chamberlin v. 101 Realty Inc., et al., 54 FEP Cases 101 (1st Circuit 1990).
In determining whether there is employer liability for actions of a supervisor which are sexually harassing, the Supreme court has directed that agency law be applied. Meritor Savings Bank v. Vinson. Supreme Court of the U.S. 1986 (40 FEP Cases 1822). An employer is strictly liable for the actions of its supervisor which constitute quid pro quo harassment, under respondent superior. Chamberlin, supra. There is also liability for the actions of a supervisor which create a hostile work environment if the supervisor is acting within the scope of employment.
Under the principles of agency law, there may be employer liability for a hostile work environment caused by the supervisor acting outside the scope of his employment if: (1) the employer intended the conduct or its consequences; (2) the employer was negligent or reckless (for example, knew or should have known of the conduct and failed to take prompt, effective remedial action); (3) the conduct violated a non-delegable duty of the employer; or (4) the supervisor purported to act or to speak on behalf of the employer and there was reliance on apparent authority, or the supervisor was aided in accomplishing the harassment by the existence of the agency relationship. Meritor, supra. The absence of notice to the employer does not necessarily insulate that employer from liability for sexual harassment caused by the actions of a supervisor. Id.
It is an unlawful discriminatory practice for any person engaged in any activity to which 354-A applies to discharge, expel or otherwise retaliate or discriminate against any person because the person has opposed any practices forbidden under the statute or because the person has filed a complaint, testified or assisted in any proceeding under the statute. RSA 354-A: 19, Retaliation.
An unlawful employment practice (violation) is established when the complaining party shows that sex (or retaliation) was a motivating factor for any employment practice, even though other factors also motivated the practice. On a claim in which an individual proves a violation, the respondent must demonstratethat it would have taken the same action in the absence of the impermissible motivating factor. 42 U.S.C. 2000e-2, as amended.
The Commission finds that sexual comments by Supervisor Robinson began at the time of complainant's initial employment and continued unabated until her layoff. The comments included referring to a co-worker by the names of "Jugs" or "Watermelons", describing in a joking manner a co-worker's infestation with "crabs", discussing his first sexual encounter, describing sexual activity with his wife, commenting on the size of his wife's breasts in comparison to her sister's and talking about women he encountered in bowling alleys who were not wearing underwear. Robinson would frequently inquire about Slade's sex life, asking her if she had "gotten laid" last night, especially on Mondays. Robinson also remarked to complainant's sister, Tammy Woodside, that if she wanted to go to lunch with Lisa, he would see about it if she were "wearing sexy lingerie and heels". Woodside and other witnesses testified that Robinson would ask whether Slade and other female employees had gotten "any zing zing last night", while pumping his arm back and forth and thrusting his hips. When Slade's mother, Diane Silver, called to speak with Lisa, Robinson told her, "She is under my desk". When Silver asked what she was doing, Robinson responded, "She is doing what she is supposed to be doing". There were no allegations that Robinson propositioned Slade for sexual activity or that he initiated any unwelcome physical contact.
Lisa Slade found Robinson's comments to be disgusting, embarrassing and unwelcome. She repeatedly reacted by telling Robinson to "shut up" or by calling him a "pig". Although witnesses including Woodside, Silver, Susan Foss and Joan Dragoumanos corroborated Slade's assertion that she called Robinson a "pig", Robinson denied it.
All parties agreed that Ames Textile had no sexual harassment policy in effect. Robinson testified that he had placed a laminated employment poster, including a reduced-size version of the New Hampshire Human Rights Commission poster, on the wall of the cafeteria in 1993. No other witness, including several who frequented the cafeteria, could recall seeing such a poster.
After Slade was laid off, she contacted the president of Ames, John Stevens, and asked for a meeting. Stevens asked Walter Quinn, the company controller and chief financial officer who also had responsibility for personnel matters, to meet with her. At the meeting, she presented him with documents describing mismanagement by Robinson. The issues involved Robinson selling scrap cardboard for personal profit, frequent tardiness and absences, employees building crates for Robinson and inappropriate comments made by Robinson. Quinn questioned Slade about some of these issues, showing most concern about the cardboard sales. He did ask Slade if Robinson had touched her sexually. Quinn then reported to Stevens who directed Quinn to send Slade's documents to John Vessey, who was Robinson's supervisor. Vessey contacted Robinson and discussed Slade's allegations, including the inappropriate comments. Vessey disciplined Robinson for the sale of the cardboard by docking him one week's vacation. No investigation of the sexual harassment charges was undertaken.
Respondent argues that complainant could not have been offended by Robinson's behavior because she was a racist and because she used the "f-word" at work. The Commission finds the charges of racism to be irrelevant and unsubstantiated. The Commission finds that complainant's infrequent use of the "f-word" in a non-sexual context does not render Robinson's use of the term in a sexual context, welcome.
Respondent further argues that the selection of complainant for layoff resulted from Robinson's assessment that Jose Vasquez was the better machine operator.
While both employees were competent, the Commission finds that Lisa Slade was selected for layoff because she objected to the sexually hostile work environment created by her supervisor, Michael Robinson. The Commission finds that acceptance of sexual harassment had become a term or condition of complainant's employment and that the layoff constitutes quid pro quosexual harassment and retaliation. The Commission finds further retaliation in Robinson's refusal to recall complainant to work and in his interference with potential employment by Inside Track Cable by threatening to withdraw certain privileges.
A. Lost Pay
The Commission rules that Ames Textile must reimburse Lisa Slade for lost pay from October 20, 1995 to the close of the Commission hearing on January 14, 1998.
The Commission finds that Lisa Slade was unemployed from October 20, 1995 for 11 weeks until she was hired by Nick's Sports Bar. At Ames, Slade earned $9.76 per hour and the Commission finds that this wage would have continued. Her weekly earnings at Ames totaled $389.40. During this period, she received $1760 from the Department of Employment Security. Her income during that period should have been $4,283.40. Subtracting the DES payment, the Commission concludes that Ames Textile must pay Lisa Slade the sum of $2,523.40.
In January, 1996, Lisa Slade was hired by Nick's Sports Bar. She is paid $200 per week for cleaning, $42 per week week for tending bar and receives $50 per week in tips, for a total weekly income of $292. The differential between her earnings at Ames and her earnings at Nick's is $97.40 per week. The Commission awards this differential for 104 weeks for a total of $10,129.60.
B. Compensatory Damages
Commissioners John Coughlin and Maureen Raiche Manning find that the discriminatory acts by Ames Textile caused the complainant to suffer emotional harm. Complainant's testimony, supported by testimony from her mother, sister, roommate and gynecological physician's assistant, indicates that she suffered depression and anxiety resulting from sexual harassment. Commissioners Coughlin and Manning order Ames Textile to pay the sum of $10,000 to compensate complainant for pain and suffering resulting from enduring sexual harassment on the job and for the pain and suffering resulting from the discriminatory layoff.
Commissioner Beverly Rodeschin declines to award any monetary compensation for pain and suffering, finding that complainant's anxiety and depression resulted from breaking up with her boyfriend (as evidenced by the physician's assistant's notes) and from financial stress, not discrimination.
C. Front Pay
The Commission declines to award front pay in this case, finding that complainant has been made whole by other aspects of the damage award and that future losses proposed by complainant are too speculative. Complainant has the prospect of obtaining comparable future employment.
The Commission orders Ames Textile to pay interest on the back pay award and the compensatory damages at the rate of 7.3%. RSA 336:1, II. The back pay award and the compensatory damage award total $22,653. The interest award is $1653.66.
E. Costs and Attorney's Fees
The Commission is authorized to award reasonable and necessary attorney's fees and costs. Accordingly, the complainant is ordered to submit an itemized statement within 20 days of the date of this order. Respondent is granted 10 days from the filing of the statement to object. The Commission will then enter a further and final order.
FINDINGS OF FACT
RULINGS OF LAW
The Commissioners have extensively reviewed the numerous, detailed proposed findings of fact and rulings of law submitted by the parties. Some of these requests were not ruled upon because they were not drafted clearly or were deemed irrelevant to the decision.
A. Complainant's Request for Findings of Fact
5. granted with deletion of phrase beginning with "since" and ending with "layoff"
9. granted with deletion of word "often" in first sentence
13. no finding
14. granted with deletion of language at end of paragraph beginning with word "about" and ending with word "sadness"
15. no finding
16. no finding
17. no finding
18. no finding
19. no finding
22. no finding
23. granted with deletion of last sentence
25. granted with deletion of third sentence beginning with "other" and ending with "insults".
27. no finding
28. granted with deletion of last sentence
30. no finding
31. no finding
32. no finding
33. no finding
34. no finding
35. granted with deletion of remaining paragraph after first semicolon
36. no finding
37. granted with deletion of term "relentless" in first line, substitution of word "some" for word "severe" in third line and deletion of term "his mantra".
39. granted when rewritten to read: "On July 26, 1995, during her annual gynecological exam, Sheldon concluded that complainant was depressed and she prescribed zoloft".
41. granted with deletion of first sentence
43. granted with deletion of phrase beginning with word "Before" and ending with word "documentation".
granted with deletion of first four sentences
44 (a), granted
45. granted when rewritten to read, "Robinson's selection of complainant for layoff was motivated, at least in part, by discrimination".
46. no finding
51. granted when rewritten to read, "Ames did not take any meaningful action in response to this actual notice of Robinson's harassment."
55. granted with the following changes:
1. insert "in part" in first sentence following the word "depression";
2 . delete second sentence
3. rewrite third sentence to read, "While she loved her job and got along well with her co-workers, Robinson often subjected her and her relatives to offensive remarks and used his power and supervisory authority to remind her that if she rebuffed his comments too much, she'd lose her job".
4. sentences 4, 5 and 6 are granted
granted with deletion of term "full time" in first sentence
56 (a) no finding
57. no finding
B. Complainant's Financials
Because the Commission has explained its findings on damages in detail above, no rulings are made on "complainant's Financials".
C. Complainant's Proposed Conclusions of Law
8 (a) no finding
13 (a) denied
granted with deletion of words "medical provider"
13(c) See Commission's ruling on damages
15. granted to the extent consistent with Commission findings
16. granted with deletion of second sentence
18. no finding
23. no finding
24. no finding
25. no finding
D. Respondent's Request for Findings of Fact
6. granted: first sentence, granted: second sentence with word "occasionally" substituted for word "frequently". denied: remaining sentences.
7. denied: first sentence, second sentence rewritten to read: "Robinson gave Slade a written warning for her attendance in 1990.
8. granted: first sentence, denied: all remaining sentences
11. granted except for last sentence which is denied
13. granted except for last sentence which is denied
17. granted with words "Slade requested that Phyllis Shelton" deleted
19. granted with deletion of phrase "on or about this time"..
20. granted with deletion of phrase "on or about this time".
24. granted: first two sentences and last sentence, denied: sentences three, four and five
28. granted with words "copies of" inserted before canceled checks
29. no finding
34. granted: first sentence, denied: second sentence.
36. no finding
37. granted with period inserted after "meeting with Slade". The remainder of the sentence is denied
41. granted: first sentence. The remaining sentences are denied
44. denied: first sentence, granted: second sentence, denied: third sentence.
47. granted: first, second and third sentences, denied: last sentence
48. granted: first sentence, denied: second sentence
54. no finding
55. granted: first sentence, denied: second sentence
E. Respondent's Proposed Conclusions of Law
8. granted: first sentence, denied: remainder of paragraphs.
9. denied: all sentences except the second to last sentence which is granted
13. granted through end of sentence which ends with words "pursue new employment with reasonable diligence". denied: remainder of paragraph.
RESPONDENT MICHAEL ROBINSON'S
MOTION TO DISMISS
The complaint in this case named Lisa Slade's supervisor, Michael Robinson, as a respondent, in addition to Ames Textile. Robinson has moved to dismiss himself as a respondent, arguing that Title VII and RSA 354-A do not impose individual or personal liability.
RSA 354-A:7 prohibits discrimination by employers, employment agencies and labor organizations. RSA 354-A:2, VII defines "employer" as: "Employer does not include a club exclusively social,... nor does it include any employer with fewer than 6 persons in its employ, but shall include the state and all political subdivisions, boards, departments and commissions thereof. "
Title VII of the Civil Rights Act of 1964, 42 U.S.C. s2000e(b) states: "The term 'employer means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, ..." (emphasis added). The determining issue regarding individual liability in Title VII cases is whether the Title VII language, "any agent of such a person" is evidence of congressional intent to make supervisors liable as individuals.
No New Hampshire supreme court cases interpreting RSA 354-A have addressed the individual liability issue presented by this case. Federal case law interpreting Title VII, has been relied upon to interpret RSA 354-A. See. e.g. Burns v. Gorham, 122 NH 401, 406 (1982). RSA 354-A:2 states in part that " 'unlawful discriminatory practice' includes. . . [p]ractices prohibited by the federal Civil Rights Act of 1964..."
The initial decision in the District of New Hampshire held that an agent could be subject to individual liability under Title VII. Lamirande v. Resolution Trust Corp., 834 F. Supp. 526. However, subsequent decisions by the District of New Hampshire have concluded that Congress included the "agent" language to remind courts of the doctrine of respondeat superior, and does not impose individual liability. Douglas v. Coca Cola Bottling Co. of Northern New England, Inc., 885 F. Supp. 518, Miller v. CBC Companies, Inc., 908 F. Supp. 1054 (D.NH 1995) Bartholomew v. Delahaye Group, Inc., No. 95-20-B and Dalton v. Wal-Mart Stores, Inc., No. 95-484-SD. Lamirande has been reversed.
Title VII has been interpreted as not imposing liability on individuals in discrimination claims. Therefore, the Commission finds that RSA 354-A does not impose individual liability under the facts and circumstances presented in this case.
Accordingly. Respondent Michael Robinson's Motion to Dismiss is
January 27, 1998
John J. Coughlin
Chair for the Hearing Commissioners
Maureen Raiche Manning, Esquire
Beverly Rodeschin, dissenting from the award of compensatory damages but otherwise concurring in the decision.
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